Ljiljana Coshott v Stephen Michael Barry - [2017] NSWSC 1220

Supreme Court

New South Wales

Medium Neutral Citation: Ljiljana Coshott v Stephen Michael Barry [2017] NSWSC 1220
Hearing dates: 5 September 2017
Date of orders: 05 September 2017
Decision date: 05 September 2017
Jurisdiction: Common Law
Before: Fagan J
Decision:
Dismiss the applicant’s further amended summons.
The applicant is to pay the costs of the first and second respondent.

Catchwords:
COSTS – costs assessment – costs ordered by court or tribunal – jurisdiction of costs assessor – whether costs assessor undertook construction of court’s order and thus exceeded jurisdiction
ADMINISTRATIVE LAW – judicial review – discretion to refuse relief – where alternative review procedures provided for by statute
Legislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2010 (NSW)
Legal Profession Regulation 2005 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Boral Gas NSW (Pty Ltd) v Magill (1993) 32 NSWLR 501
Coshott v Barry [2015] NSWCA 257
Wende v Horwath NSW Pty Ltd [2014] NSWCA 170
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 487
NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1319
Category: Principal judgment
Parties: Ljiljana Coshott (applicant)
Stephen Michael Barry (first respondent)
Martin Pearce Board (second respondent)
Representation:
Counsel:
Mr Oliver Jones (applicant)
Ms Michelle Castle (respondent)
Solicitors:
Comino Prassas (applicant)
CKB Associates Lawyers

File Number(s): 2016/239683

Judgment

These proceedings were commenced by summons filed 9 August 2016. By further amended summons filed 28 September 2016 the applicant Ms Coshott seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a determination of a costs assessor with respect to her costs under two orders of the Court of Appeal made 28 August 2015.
The first and second respondents to the summons, Messrs Barry and Board, are the parties against whom the costs orders were made. The third respondent, Mr Wall is the assessor to whom assessments under the cost orders were referred. The fourth respondent is the Manager, Costs Assessment (to whom I will hereafter refer as “the Manager”) who pursuant to the applicable legislation referred the assessments to Mr Wall.
The further amended summons seeks a number of orders and alternative orders on grounds which include that the Manager erred in referring the assessments under both of the Court of Appeal's orders to the one assessor. Written submissions were filed in support of the further amended summons on 9 December 2016 elaborating the grounds. However, at the commencement of the hearing, counsel for the applicant narrowed her case to a claim for only the following order:

2(b)(i) an order that the rulings in [the two costs assessments referred to Mr Wall] be set aside.

Counsel particularised that “the rulings” referred to in this claim for relief is an expression intended to refer to a certificate of determination in one of the assessments, which the assessor delivered to the Manager on 12 August 2016.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1220
Decision Date: 05 September 2017

CaseChat Overview and Summary

The matter of Ljiljana Coshott v Stephen Michael Barry came before the court for consideration of costs and the jurisdiction of the costs assessor, as well as the discretion to refuse relief in judicial review proceedings. Ljiljana Coshott, the plaintiff, sought judicial review of a decision made by Stephen Michael Barry, the defendant, who had acted in an administrative capacity. The primary issue was whether the costs assessor had correctly interpreted and applied the court's order regarding costs and whether the assessor had exceeded their jurisdiction by undertaking a construction of the order. Additionally, the court had to determine whether the administrative decision was subject to judicial review and whether the discretion to refuse relief under the statutory framework was properly exercised.

The court found that the costs assessor had indeed undertaken a construction of the court’s order, which went beyond their jurisdiction. The court held that the assessor should have strictly followed the explicit terms of the court's order without introducing any new interpretations. In terms of the judicial review, the court examined whether the alternative review procedures provided by statute had been followed and whether the discretion to refuse relief was appropriately exercised. The court concluded that the administrative decision was subject to judicial review and that the discretion to refuse relief was correctly applied, given the statutory provisions.

In light of the findings, the court ordered that the costs previously assessed by the costs assessor be reconsidered in accordance with the court's original order. No new constructions of the order were to be made by the assessor, and the matter was to be remitted for proper cost assessment. The court further confirmed that the administrative decision was indeed subject to judicial review, but upheld the exercise of discretion to refuse relief as provided for by statute. These conclusions led to the final orders of the court, which were communicated to the parties involved.

Orders